Smt. Murti Devi vs Uoi & Ors.
2011 Latest Caselaw 1004 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    LPA No. 3/2010 & CM No. 114/2010

%                       Date of Decision: 21.02.2011

Smt. Murti Devi                                         ...... Appellant

                    Through   Ms. Seema Gupta, Advocate

                                Versus

UOI & Ors.                                             ...... Respondents

                    Through   Mr. S.K. Dubey, Advocate for respondent
                              No. 1
                              Mr. Anshuman Sood, Advocate for
                              respondent No. 3


CORAM:

HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.    Whether reporters of Local papers may be              YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                 NO
3.    Whether the judgment should be reported in             NO
      the Digest?


ANIL KUMAR, J.

*

1. The appellant has challenged the order dated 6th November,

2009, passed in WP(C) No. 11191/2009 titled as 'Smt. Murti Devi Vs.

UOI & Ors.', dismissing the writ petition, seeking directions to

respondent Nos. 1 to 3 to allot alternative suitable site under

rehabilitation scheme to the appellant after demolition of the leased

premises adjacent to shop No. 6, West Barron Road, New Delhi and for

quashing the demand notice dated 17th April, 2009 and to declare the

notice null and void.

2. The relevant facts for comprehending the controversies are that

pursuant to the application dated 7th May, 1957 by the husband of the

appellant, a site measuring 2210 sq.ft., for running a flour mill driven

by electricity at West Barron Road, adjacent to shop No. 6 from 14th

August, 1957 at a monthly lease of Rs. 53/- per month was granted by

the respondents. The proposed lessee was also entitled for erection of a

temporary structure on the land in accordance with the plans to be

approved by the lessor. It was also agreed that a temporary lease will

be executed at the expense of proposed lessee. By a communication

dated 13th December, 1957, it was communicated to Sh. Paras Ram,

erstwhile lessee that the ground rent of Rs. 53/- for the area of 1950 sq.

ft. had been wrongly intimated and he was directed to pay an amount of

Rs. 57/- for the reduced area of 1,592 sq. ft.

3. For erection of temporary structure, an application dated 18th

November, 1957 was filed which was considered by Resolution No. 175

dated 28th March, 1958. A temporary lease dated 18th September, 1958

stipulating the monthly lease money of Rs. 57/- was also executed in

favor of the predecessor of the appellant. The said lease could be

determined by giving one month notice by the lessor. A No Objection

Certificated dated 29th July, 1958 to run a floor mill adjacent the shop

No. 6, West Barron Road, New Delhi was also granted in respect of a

newly constructed structure from the health point of view. The

department of factory license had also issued a commercial license

dated 11th August, 2004.

5. The predecessor of the appellant was, however, sent a notice

dated 3rd March, 1976 demanding the ground rent for different periods

stipulating that if the amount was not paid within 30 days, the terms

and conditions offered would be automatically withdrawn and action

would be taken against the proposed lessee. To the notice dated 3rd

March, 1976, a reply was sent on behalf of Sh. Hari Shankar Flour Mills

dated 28th December, 1976, contending, inter alia, to consider his

representation sympathetically and for reducing the ground rent so that

it may be within the paying capacity. Thereafter, many more

representations were made by Sh. Paras Ram for reconsideration of his

case and for reducing the monthly rent which was not accepted by the

authorities. The representations of the appellant's predecessor were

declined by letter dated 28th August, 1987 and he was directed to make

payment within 15 days, failing which the terms and conditions offered

to the predecessor of the appellant by a communication dated 3rd

March, 1976 would be withdrawn and cancelled. It was also stated that

the occupation of the Government land was unauthorized from 15th

January, 1966 and hence he was also liable to pay the damages.

6. Against the said notice, though some communications were

addressed, however, no legal action was taken to establish that the

possession was not unauthorized w.e.f. 15th January, 1966 as was

claimed by L& DO and that the predecessor of the appellant was liable

to pay damages as demanded by L& DO.

7. The learned Single Judge while noticing the relevant facts also

recorded that the rent of the premises had been enhanced to Rs.295.59

per month from 15th January, 1971 and to Rs.369.93 per month w.e.f.

14th April, 1974. Though the predecessor of the appellant was asked to

remit payment of Rs. 22,970.03 and Rs. 2,655/- by separate cheques

drawn in favor of L&DO, however, it was not accepted nor were the

terms and conditions complied with. This was also accepted before the

learned Single Judge that predecessor-in-interest of the appellant had

not made payment @ Rs.63.72 per month.

8. The DMRC (Delhi Metro Rail Corporation) had acquired the

property for the purpose of the Delhi Metro Project on 11th September,

2008. Before the property was acquired, the proceedings under the

Public Premises (Eviction of Unauthorized Occupants) Act, 1971 were

initiated against the predecessor of the appellant, however, after the

possession was taken the said proceedings became infructuous and

therefore, were withdrawn. However, the L&DO have also demanded a

sum of Rs. 2,33,00,000/-as damages from the appellant and her

predecessor-in-interest, which demand had also not been challenged by

the petitioner in any separate proceedings.

9. After the possession was recovered from the appellant she

demanded allotment of alternate site for her under the Rehabilitation

and Relocation scheme in terms of guidelines on Relocation and

Rehabilitation Policy in respect of project affected persons. The relevant

terms and conditions of the guidelines on Relocation and Rehabilitation

are as under:-

(1) Eligibility conditions for being covered under Relocation/Rehabilitation Policy:-

(a) The guidelines on Relocation & Rehabilitation Policy for project affected persons will be uniformly applicable for all phases of MRTS projects.

(b) Those whose shops/residences on workshops/industrial units got affected in such a manner that they have to leave the said premises. In case of premises where only small part, (less than 50%) has been taken and the occupant continues to reside/work from there, will not be eligible for rehabilitation under this scheme.

(c) In case of shops the persons doing business whether he is the owner of the land or the tenant will be eligible.

(d) In case of premises being used as residential units the rehabilitation will take place only in case of owner residing there. The tenants will not be eligible under the scheme.

(e) The treatment in respect of workshops/industrial units would be the same as those of industrial shops indicated above.

2. In case of Pucca Structures at government land, removed due to implementation of phase-I project of Delhi MRTS, their owners will be allotted the plot of maximum size of 18 sq. m. in case of persons having valid food card as on 31.01.1990 and 12.5 sq. m. having valid food card as on 31.12.1998 under the existing Relocation Policy of J.J.Clusters.

10. Under the guidelines, the persons having shops doing business

whether owner of the land or the tenant is eligible for rehabilitation.

11. The appellant therefore, filed writ petition being WP(C) No.

11191/2009 claiming, inter alia, direction to the respondents to allot

alternative suitable site under the rehabilitation scheme to the

appellant and to award appropriate compensation/damages and for

quashing the demand notice dated 17th April, 2009 and to declare the

same as illegal, null and void. Before the Single Judge, the policy

decision under which any alternative accommodation could be allotted

had not been produced.

12. The learned Single Judge relied on Ravi Khullar and Anr. Vs. UOI

& Ors., Appeal (Civil) No. 1704/2007, to hold that de hors any scheme,

alternative accommodation could not be allotted and owner/occupier is

entitled to compensation only under the Land Acquisition Act, 1898.

Since no policy was produced before the Single Judge, it has been held

that the appellant is not entitled to any relief. In any case, the

predecessor of the appellant had been in occupation of the Govt. land

temporarily in 1957 which period had expired in 1967 and no extension

had been granted and the appellant had also failed to comply with the

terms and conditions and did not accept terms offered in 1971, 1974

and 1987. Consequently, the occupation of the petitioner is

unauthorized and merely because the proceedings under the Public

Premises (Eviction and Unauthorized Occupants) Act, 1971 were

initiated which became infructuous on acquisition of premises by

DMRC, no such right to have allocation of alternative accommodation

had precipitated or crystallized in favor of the petitioner which would

entitle her for allotment of an alternative site in lieu of the site which

was in her un-authorized occupation, possession of which was taken

over by DMRC.

13. The learned Single Judge has also distinguished the case of

Sukhdeep Singh, a coal merchant on the ground that in the case of

Sukhdeep Singh, there was a court order and under some policy an

alternative site for fuel depot was allotted to him and on parity with the

case of Sukhdeep Singh, the petitioner shall not be entitled for any

alternative accommodation.

14. The learned counsel for the appellant Ms. Seema Gupta has very

vehemently contended that the appellant is a tenant and so she is

eligible for alternative accommodation in terms of the guidelines of

Relocation and Rehabilitation Policy. The learned counsel, however,

has not been able to produce any documents on the basis of which it

can be inferred that the tenancy of the petitioner or her predecessor in

interest, which was created pursuant to a temporary lease and which

was determined, had continued till the time the possession was taken

by DMRC. The guidelines on Relocation and Rehabilitation Policy does

not contemplate allotment of alternative accommodation to an

unauthorized occupant. The learned counsel has also emphasized that

some amount was being paid by the petitioner as rent, which was not

equivalent to the rent demanded by the concerned authorities. This

fact, however, has not been denied that no perpetual lease was executed

in favor of the appellant and her predecessor in interest. If the lease

was temporary and it had expired by efflux of time and in any case,

after the notice for determination of tenancy was given, the petitioner

could not have continued as a tenant nor can she claim tenancy rights

in the premises.

15. The petitioner and her predecessor in interest did not challenge

the determination of tenancy and the demand by the authorities that

her occupation is unauthorized from 15th January, 1966. If that be so,

it has not been established that the petitioner is a tenant in the

premises. From the documents produced on the record it cannot be

inferred even prima facie that the appellant had any right in the

property, on the contrary it reveals that she is an unauthorized

occupant. Therefore it cannot be concluded or inferred that the

petitioner was a tenant at the time when the possession was taken by

DMRC for its project. If that be so, then under the guidelines of

Relocation and Rehabilitation Policy, the petitioner does not become

entitled for allotment of an alternative site for running a flour mill.

16. The learned Single Judge has dismissed the writ petition on these

grounds and on behalf of the petitioner, no such illegality or irregularity

has been pointed out which will entail any interference by this court in

the appeal under the Letters Patent Act against the order of the Learned

Single Judge declining the plea of the appellant for allotment of an

alternative site.

17. Although the powers of this appellate forum under Clause-10 of

Letters Patent has to be taken to be co-extensive with the powers

vesting in the original forum enabling it to examine the legality and

propriety of the judgment passed in the original forum yet it has to

examine and consider the same taking into account the evidence and

the materials brought on record before the learned Single Judge. It has

been observed in the matter of 'Jagdish Prasad Shivhare v. Municipal

Corporation & Ors.', 1999 (2) JLJ 209 that the remedy envisaged under

Article 226 of the Constitution of India is a discretionary remedy. They

were also of the considered opinion that in a Letters Patent Appeal the

appellate forum should ordinarily be slow in interfering with the

discretion exercised by the learned Single Judge. It must not, however,

be lost sight of that in the appropriate cases if it is found that the

exercise of the discretion by the learned Single Judge stands vitiated in

law, arbitrariness or perversity, and has the effect of resulting into

manifest miscarriage of justice, there can be no impediment in

interfering in such an order/judgment in appeal. But the mere

possibility of different conclusions on the same facts and evidence will

not justify an interference. It was also noticed in the case of Babu Ram

v. Antarim Zila Parishad, AIR 1964 All. 534, while dealing with a Special

Appeal directed against a judgment disposing of a writ petition under

Article 226 of the Constitution, rendered by a Full Bench, it had been

observed that if two views are possible on the question, then also the

Court of appeal would not interfere, even though it may exercise

discretion differently, were the case to come initially before it.

18. So far as the demand made by the respondents for recovery of

arrears of damages, it is apparent that the respondents have taken

some contradictory pleas as that the rent had been enhanced after

petitioner had become unauthorized occupant and therefore, they

would have to establish and prove the amount demanded by them in

accordance with and by due process of law. Merely on the basis of the

alleged notice they would not be entitled to recover the amount

demanded by them as the respondents have alleged that the occupation

of the appellant became unauthorized from 15th January, 1966 yet the

other plea taken is that the rent had been enhanced from time to time

after that date. In the circumstances even though the notice dated 17th

April, 2009 is not quashed, the respondents shall be liable to establish

and prove the demand raised by them in accordance with law and on

the basis of the alleged notice alone, the petitioner shall not be liable to

pay as it is denied by her.

19. In the circumstances there are no grounds to interfere with the

order passed by the Learned Single Judge which is challenged before us

and the Letters Patent Appeal is liable to be dismissed. The appeal is

therefore, dismissed, however the parties are left to bear their own

costs.

ANIL KUMAR, J.

February 21, 2011. VEENA BIRBAL, J.

'rs'